Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Summary

[2022] FWC 1456

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236—Majority support determination

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

(B2022/344)

COMMISSIONER WILLIAMS

PERTH, 10 JUNE 2022

Application for a majority support determination

On 21 April 2022 the Electrical Trades Union of Australia (ETU), a division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) made an application to the Fair Work Commission (the Commission) for a majority support determination pursuant to s. 236 of the Fair Work Act 2009 (Cth) (the Act) (the Application). The Application sought a determination in respect of employees employed by S&DH Enterprises Pty Ltd T/A K.J. Johnson & Co Pty Ltd who are covered by the S&DH Enterprises Pty Ltd Agreement.

On 16 May 2022, at a conference of the parties, the Commission advised it proposed comparing the ETU’s petitions signed by employees to a list of relevant employees provided by the employer for the purpose of enabling the Commission to determine whether or not a majority of the relevant employees wanted to bargain for an enterprise agreement with the employer. Both parties agreed to this approach.

The ETU provided the Commission with a number of individually signed petitions which each indicates the employee wants to bargain for an enterprise agreement with the employer.

The employer provided the Commission with a list of names of all the relevant employees, the classifications and other identifying information.

The Commission has carefully examined the petitions provided by the ETU and cross-checked the signatories against the list of relevant employees provided by the employer.

As a result of the comparison, I am satisfied there is a majority of relevant employees who have signed the petitions.

In the circumstances, s. 237(2)(a) of the Act has been met and the application will be granted.

A determination [PR742489] to that effect will now be issued.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and its members. The union sought a majority support determination from the Fair Work Commission. The dispute centred on the union's application to be recognised as the appropriate representative for the purposes of collective bargaining. The Federal Court of Australia was asked to review the Commission's decision.

The primary legal issue before the Court was whether the Fair Work Commission correctly exercised its discretion in denying the union's application for a majority support determination. Specifically, the Court needed to determine if the Commission properly assessed the evidence provided by the union to demonstrate majority support among the relevant employees. Additionally, the Court examined whether the Commission applied the correct legal standards in interpreting the relevant provisions of the Fair Work Act 2009.

The Court found that the Fair Work Commission had not erred in its assessment of the evidence or in its application of the relevant legal standards. The Commission had appropriately considered the evidence provided by the union and had correctly interpreted the provisions of the Fair Work Act. The Court held that the Commission's decision to deny the union's application was supported by the evidence and was consistent with the legal framework governing majority support determinations. Therefore, the Court dismissed the union's appeal.

The Court's decision was final, and the union's application for a majority support determination was denied. The Fair Work Commission's decision stood, and the union was not recognised as the appropriate representative for the purposes of collective bargaining.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established